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In the case of T.N. Raghupathy V State of Karnataka, the Karnataka High Court recently disposed of a batch of petitions challenging the designation of eighteen lawyers as Senior Advocates back in November 2018.
The petitions, filed by advocates who had unsuccessfully applied for senior designation, had also assailed the designation process and the Rules framed for the same by the Karnataka High Court.
The detailed judgment pronounced by Chief Justice Abhay S Oka and Justice Mohammad Nawaz discussed a handful of pertinent issues surrounding senior designations.
Transfer of Justice Raghvendra Chauhan
One of the contentions of the petitioners was that Justice Raghvendra S Chauhan, who received his transfer order on November 8, 2018, ought not have participated in the Permanent Committee which met on dates subsequent to his order of transfer.
In this regard, the High Court observed that a judge, when transferred, does not cease to be a judge of the original High Court to which he was appointed till he takes oath as a judge of the High Court to which he is transferred.
The Court held that,
In the present case, as Hon’ble Shri. Justice Raghvendra S Chauhan had not subscribed to the oath or affirmation as a Judge of High Court at Hyderabad till 15th November, 2018, he continued to be the senior most judge of High Court of Karnataka and had a right to act as a member of the Permanent Committee and a member of the Full Court. There is no illegality associated with his participation in the process of designation of Senior Advocates.
Karnataka High Court
Cut-off marks for candidates
Another contention was that a cut-off of 50 marks was illegally fixed for considering candidates for designation as Senior Advocates. The Court, however, held,
"Therefore, the argument that the bench mark of 50 was fixed cannot be accepted as it is not consistent with what is recorded in the minutes. What transpired in the Full Court meeting of the constitutional functionaries cannot be determined on the basis of an inference when the decision itself does not refer to fixing of any such bench mark. Thus, our view is that there is no material on record to show that any bench mark of fifty marks was fixed."
Karnataka High Court
The Court further stated that if the members of the Full Court agree with the point-based assessment made by the Permanent Committee, it is quite possible to fix a benchmark by providing that those who have secured points above the benchmark will be designated as Senior Advocates.
Hurried process and the Permanent Committee being constitutional functionaries
On the point of judicial review, the Court said that a writ court cannot go into the merits of the of the decision of the Full Court under Article 226 and can only examine the decision making process. The Court further observed that,
“Unless the decision is vitiated by gross illegality apparent on the face of the record or it is a case of established mala fides or established bias, a writ court cannot interfere. A writ Court can interfere when the decision is so capricious or arbitrary that no reasonable person can arrive at such a decision.”
The Court specifically pointed out while exercising its powers, the High Court has to keep in mind that the decision is taken by constitutional functionaries, namely, the judges of the High Court.
Therefore, a writ court cannot go into the adequacy of material before the Full Court, the High Court held.
The Court also reiterated that,
“The power to designate an Advocate as a Senior Advocate vests only in a Full Court of a High Court.”
The Court further addressed the argument that the Permanent Committee completed the process with undue haste, as the process for evaluation was done over a wide span of over two weeks. The Court went on to observe,
“……It is not as if that after interviews were concluded on 31st October, 2018, the Committee met overnight and hurriedly assigned the final marks. All that Permanent Secretariat was required to do was to do the tabulation of marks which was made ready on 12th November, 2018. Such tabulation work was done and signed by the members of the Committee on 12th November 2018.”
Voting by secret ballot
In its extensive judgment, the High Court made it very clear that it is the general rule that voting by secret ballot will not be normally resorted to by the Full Court, as per the Supreme Court directions. It will be done only in exceptional circumstances and when it is unavoidable, the Court opined.
Allegations of bias against Advocate General
One of the petitioners in the matter had asserted that then Advocate General Udaya Holla, who participated in the Committee deliberations, endorsed one of his juniors and two of his close associates.
In this regard, the Court said that it was "unfortunate" that such wild allegations were being made without any basis, whatsoever. The Court noted that Holla had recused himself from the deliberations and did not assign marks to the concerned candidates. Under the circumstances, this allegation was dismissed by the Court.
Case against the 12th respondent
The argument against Arun Kumar K, one of the designee, was that his conduct appeared to unprofessional as he had made certain false comments and allegations against the sole arbitrator in a previous matter.
In an award dated November 20, 2018, passed by the sole arbitrator in 2017, there was an adverse finding recorded about his competency and his ability to discharge professional obligations.
On this point, the Court observed that If the findings recorded by the arbitrator attain the finality, it is for the Full Court to consider the case for exercise of power under Rule-9 of the Senior Advocates Rules read with paragraph 73.11 of the direction of the Apex Court.
However, the said award has been challenged by both the parties and is pending for adjudication before a court of law. Therefore, the Court opined that,
“As the said Award is the subject matter of a challenge, we cannot treat the observations of the Sole Arbitrator as the findings which have attained finality. Therefore, we are unable to issue any directions at this stage.”
Case against the 16th respondent
The Court took a dim view that one of the designees, Lakshmy Iyengar, made certain allegations against Senior Advocate BV Acharya, who is the father of one of the petitioners.
The petitioners had claimed that Iyengar, who secured the maximum marks in the designation process, has only eight reported judgments to her name, as opposed to other more experienced lawyers.
On her part, Iyengar claimed that Acharya was involved in unethical propaganda against her by making phone calls to several Senior Advocates. She also alleged that the senior lawyer spread the rumour that she had granted sexual favours to ensure her designation.
The Court, however, noted that absolutely no attempt was made to substantiate the said allegations. In this light, the Court recommended that her designation be reviewed by the Full Court.
"More so when after giving an opportunity to withdraw the allegations. against the Senior Advocate, the same were not withdrawn by her. Therefore, we are of the view that her case needs to be considered by the Full Court for review or recall in accordance with the directions of the Apex Court contained in paragraph 73.11 in the case of Indira Jaising (supra)."
Karnataka High Court
The Court further opined that a designated Senior Advocate is expected show a high moral compass and be a role model for the junior advocates in Court.
“….standing of a designated Senior Advocate is completely different from any other Advocate. A very high moral and ethical standards are expected to be followed by such a Senior Advocate who is expected to become a role model to the junior and other members of the Bar. Therefore, a designated Senior Advocate is expected to show a restraint while defending the challenge to his/her designation as a Senior Advocate.”
[Read the judgment]